R.N. Misra, J.
1. This is an application for a writ of certiorari directed against the order dated 21st February, 1972 passed by the department of Labour and Employment, Government of India declining to refer a dispute for adjudication of the Appellate Tribunal under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947.
2. The petitioner was first employed as an agent by the National Insurance Company Limited. In October, 1969 he came to be appointed as an inspector under the same company and was assigned the duties of recruitment of field agents within the Cuttack district, give them proper directions, control their activities and organise the business of the company within the said area. He was also to attend to the processing of claims and was occasionally required to maintain records, preparation of cover journals, cover notes, certificates, etc. His remuneration was Rs. 175 per month. Some time after the petitioner fell out with the management and his services were terminated with effect from 22-9-70. A conciliation proceeding as provided under the Act was followed. On 28th October, 1971 the Conciliation Officer submitted a failure report under Section 12(4) of the Act. As no action was taken by the appropriate Government, the petitioner kept on reminding. Ultimately he was communicated the impugned order under a covering letter dated 18th October, 1973. The impugned order is as follows :
I am directed to say that it is seen that the primary function of Sri Braja Sundar Das (petitioner) was to procure business for the company and the clerical duties were only incidental. As such it is considered that Sri Das cannot be regarded as workman under the Industrial Dispute. In view of this the question of Government taking action under the Industrial Disputes Act does not arise.
3. Counsel for the petitioner con-lends that it was not for the appropriate Government to take a final decision on the question as to whether the petitioner is a ' workman ' or not and the matter should hove been left to be decided by the adjudicating machinery provided under the statute. It is next contended that the reason given for holding the petitioner not to be a workman is foreign to the statute and even if it is accepted that Government has power prima facie to hold that the petitioner was not a workman, the conclusion reached in the case is contrary to law. Though notice of admission and hearing had been given to the opposite party and notice has been served, there has been no appearance. The petitioner's counsel, therefore, is heard.
4. The scheme under the Act, as far as reference is concerned is contained in Sub-sections (4) and (5) of Section 12 of the Act. These provisions are as follow :
(4) If no such settlement is arrived at, the conciliation officer shall as soon as practicable after the close of the investigation send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances, and the reasons on account of which in his opinion, a settlement could not be arrived at.
(5) If on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, (Labour Court, Tribunal or National Tribunal), it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
In the case of Bombay Union of Journalists v. State of Bombay reported in 1964-I L.L.J. 351 : : (1964)ILLJ351SC , examining the provisions in question the Court held :
It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5) or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under Section 10(1), and so, the argument that the appropriate Government exceeded its jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be accepted.
From what has been stated above it would, follow that the appropriate Government had jurisdiction to find out Prima facie whether the claim led by the petitioner was tenable and if on such examination, the petitioner turned out not to be a workman it was open to the State Government to refuse to make a reference.
5. ' Workman' has been denned under Section 2(s) of the Act to mean any person (apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connexion with or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to the Army Act, 1950 (46 of 1950), or the Air Force Act, 1950 (45 of 1950) or the Navy (Discipline) Act, 1934 (34 of 1934); or
(ii) who is employed in the police service or as an officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
That the employer was an industry is not in dispute. Unless the matter comes within one of the four specified exceptions, in the facts of the case, the petitioner would be a workman. Clauses (i) and (ii) have no application in the facts of this case. It has to be found out whether the petitioner was employed in a managerial or administrative capacity, or being employed in a supervisory capacity exercised either by the nature of the duties attached to the office, or by reason of the powers vested in him, functions mainly of a managerial nature. The duties as discharged by the petitioner have been indicated at some length in the failure report by the Conciliation Officer. By reference to the duties indicated therein we are not in a position to hold that the petitioner's functions were mainly managerial. Similarly, it is difficult to hold on the materials available in the failure report that the petitioner was employed mainly in an administrative capacity. Even if the petitioner's employment is taken to be supervisory in nature, in view of the conceded fact that he was drawing a salary of less than Rs. 500 per month, he would not be covered by fourth exception,
6. The materials available to the appropriate Government were not adequate to hold in a conclusive way that the petitioner was not a workman. Therefore, the grounds furnished for refusal to make a reference under Sub-section (5) of Section 12 read with Section 10(1) of the Act does not seem to be germane to the matter in dispute. Therefore, we think it appropriate to quash the impugned order as not being in accordance with law and would require the appropriate Government to make a reference under the Act of the dispute relating to the determination of the petitioner's service for adjudication by an appropriate Tribunal.
7. As there was no appearance for the opposite party, we do not consider it appropriate to make any order for costs. The writ application is allowed. The impugned order is quashed and let a direction issue to the opposite party to make a reference as indicated above.
B.K. Ray, J.
8. I agree.